Mr. Khanna’s Call to Arms Over Cellphone Unlocking is More Copyright Misrepresentation -- Part 8: Defending First Principles Series

Free culture activist, Derek Khanna, has thrust himself into the limelight again with yet more misrepresentations of copyright law. His latest copyright-neutering effort is a “call to arms” to “the digital generation” to oppose a Librarian of Congress 1998 DMCA copyright ruling, that it is illegal to break into a cell-phone’s software in order to “unlock” it -- without the permission of, or payment to, the software’s owner.

Remember Mr. Khanna’s previous misrepresentations of copyright law got him fired by the House Republican Study Committee last December. His “copyright myths” paper was taken down because it tried to represent radical Free Culture core beliefs as mainstream House conservative values which they obviously are not. For example, Mr. Khanna’s paper misrepresented that: “Copyright violates virtually every tenet of laissez-faire capitalism.” (See how Mr. Khanna misrepresented the Committee’s views -- here; and why his copyright views are not conservative -- here.)

Tellingly, Mr. Khanna’s latest copyright misrepresentation uses a picture of a smart-phone emblazoned with an American flag to symbolically appeal to conservatives and misdirect from the fact that he’s pushing the radical Free Culture/Free Software Foundation anti-property view that no one needs anyone’s permission to break into and modify proprietary software for others’ use.

At bottom, this is classic Trojan horse effort to try and trick a few conservatives into supporting the radical Free Culture movement position that software should not be copyrightable, patentable, or proprietary, in order to pave the way for a “free and open” Internet commons.

Remember conservatives envision a “free and open Internet” as being an unregulated, property-based, free market. In stark contrast, Mr. Khanna’s Free Culture movement believes a free and open Internet means the opposite -- a government-net-neutrality-regulated, property-less, information commons.

Central to free market property rights generally, and copyright specifically, is an owner’s right to control the price and terms of how their property is sold and used. Mr. Khanna’s latest copyright misrepresentation -- that prohibiting users from unlocking cell-phones is “anti-consumer, anti-business and anti-common sense” – attempts to turn that core property/market precept upside down.

Apparently Mr. Khanna’s sense of injustice is having to pay full price for a smart-phone, in order to get the maximum utility and flexibility from it. Consumers already have the freedom of market choice to buy a so-called ‘unlocked’ smart-phone at the full market price without carrier subsidies that they then can use with their market choice of carriers.

What Mr. Khanna is really whining about is that he thinks it’s unfair that people can’t buy a smart-phone at a lower carrier-subsidized price, and then illegally break into and modify the phone’s proprietary software to enjoy the value and flexibility of a full-price smart-phone. Essentially Mr. Khanna is indignant that it is illegal for someone to purposefully cheat the system and take something of value that one did not pay for, or have the permission of the property owner to do.

Mr. Khanna goes on to misrepresent that since a consumer owns the phone that they should be able to do whatever they want with their smart-phone. Mr. Khanna’s slick misdirection here is that a consumer owns everything in their smart-phone. They do not. They own the device and the version of software that they legally bought; they do not “own” software that they illegally break into and take without the permission of the copyright licensee.

At core, Mr. Khanna’s Free Culture, economics-of-abundance mindset opposes traditional scarcity economics of market pricing of different tiers of products, services and pricing plans. In an Internet commons, all information and software should be free of cost to the user and free to modify. Please note the ideological similarity between the so-called “injustice” of locked cellphones, the so-called “injustice” of broadband data caps and usage-based pricing, and the so-called “injustice” of reasonable network management being a violation of net neutrality.

Two Additional Takeaways

First, there has been a disturbing escalation of rhetoric from Mr. Khanna’s infamous 2012 “Copyright Myths” paper to his 2013 “call to arms” rhetoric concerning “cell-phone unlocking.”

Consider Mr. Khanna’s newly inflammatory rhetoric. For the “digital generation” Mr. Khanna urges:“A call to arms.” And says: … “We are the insurgents” … “we should focus upon asymmetrical warfare…” I believe that the first battle is on cell phone blocking…” For those willing to commence the next key battle on copyright reform, this is our call to arms.”

I hope this is just an ill-chosen metaphor and exuberant inexperience and not in any way a literal “call to arms” for digital generation “insurgents.” That would make this effort less like a civil grassroots policy advocacy movement and more like “digilantes” taking the law into their own hands.

Second, Mr. Khanna’s guilelessly blurted out that the “movement’s” anti-copyright strategy is not about actually passing copyright legislation, but is all about public relations gain. Mr. Khanna explained their strategy: “create an operating and ongoing coalition of post-SOPA actors; … change the dialogue and framing of the issues…; and gain mainstream media attention.”

This strategy benefits Free Culture by positioning copyright-infringers not as lawbreakers but as innocent activists wrongfully prosecuted for benevolently liberating information and software that yearns to be set free from its proprietary bondage.

The single biggest beneficiary of this PR strategy -- of broadly painting copyright infringers as generous saints, property owners as greedy demons, and law enforcement as bullies and thugs -- is Google. That’s because it advances Google’s copyright jury nullification strategy of nationally sowing the seeds of reasonable doubt among potential jury pools that Google may face in Google’s many high-profile copyright and patent infringement cases around the world.

Remember Google is being sued for willfully copying several million copyrighted books without the permission of the authors (Authors vs. Google Books); for Google-YouTube’s willful encouragement of mass copyright infringement of movies and TV shows (Viacom vs. Google-YouTube); for willfully using Oracle-Sun-Java’s copyrighted APIs without a license (Oracle vs. Google); and for willfully violating many companies software patents. Think of how useful it would be for Google to get just one person in each of the public and potential jury pools around the world to believe that copyright, and software patents, are outdated, excessive, greedy, mean, anti-sharing, anti-consumer, anti-business, anti-innovation, or anti-common-sense.

In sum, this latest Mr. Khanna effort is just one part of a much broader, well-organized, well-funded, and determined Free culture/Google movement that seeks to effectively neuter property rights online, in order to advance their techtopian vision of an Internet information commons and universal access to the world's public and private information.